In late April, the Office of the Director of National Intelligence (ODNI) issued their sixth annual Statistical Transparency Report, outlining how often national security authorities were used under the Foreign Intelligence Surveillance Act of 1978 (FISA).
For the uninitiated, the FISA is the authority which provides U.S. intelligence entities the capability to request surveillance for intelligence and counterintelligence purposes, primarily foreign nationals and U.S. persons with whom these foreign nationals are interacting. There are a number of nuances within this broad brush, which are sliced and diced in the ODNI reporting.
The requests come in primarily two flavors. Either a surveillance warrant has been issued by the Foreign Intelligence Surveillance Court (FISC), or the issuance of National Security Letters.
FISA Probable Cause Authorities
FISA Title I, Title III, and Title VII – Section 703 and 704
- All of these authorities require individual court orders based on probable cause.
- Titles I and III apply to FISA collection targeting persons within the United States.
- Sections 703 and 704 apply to FISA collection targeting U.S. persons outside the United States.
In 2018, the FISC issued 1,184 orders, which identified 1,833 separate individuals as “targets.” The ODNI defines “target” “as the individual person, group, entity composed of multiple individuals, or foreign power that uses the selector such as a telephone number or email address. Of these 1,833 individuals, 232 (or 12.7%) were U.S. persons (citizen, lawful permanent resident or a U.S. corporation).
FISA Section 702
- Requires individual targeting determinations that the target
- (1) is a non-U.S. person
- (2) who is reasonably believed to be located outside the United States and
- (3) who has or is expected to communicate or receive foreign intelligence information.
In 2018, there was one targeting order which encompassed coverage of 164,770 foreign nationals. In addition, the NSA made queries about U.S. persons against the content collected under Section 702 corpus, i.e., “JohnDoe@123company” totaled 9,637, up 2,125 from 2017. Similarly, the number of queries against identifiers associated with a U.S. person, i.e., “333-333-3333” was 14,374, down 2,550 from 2017.
The report also reported the frequency of U.S. persons identified in the reporting. Identifications came in two forms, masked (the identity was not openly provided) or unmasked (the identity was openly included) and included 3,442 masked, and 1,379 unmasked.
The NSA is required to be responsive to queries from other agencies on the identities of individuals who appear in the 702 coverage. In 2018, the NSA responded to 16,721 requests for identity unmasking of U.S. persons.
FISA Title V—Business Records
- Traditional business records and
- Call Detail Records (CDRs).
Throughout 2018 there were 56 orders seeking information from traditional business records, of which there were 60 individual targets, which encompassed 214,860 unique identifiers. These efforts identified over 19 million phone numbers, of which 7 million were associated with an international mobile subscriber (SIM card with 15-digit identifier) and 5 million were associated with an international mobile equipment identifiers (Serial number).
The number of requests for call detail records was 164,682, up significantly from the 31,196 requested in 2017.
National Security Letters
In 2018 there were 10,235 National Security Letters issued which requested information on 38,872 individuals, down slightly from 2017 where the numbers were 12,762 letters requesting information on 41,579 individuals.
As can be discerned from reading the report, the number of instances impacting U.S. persons are as one would expect: the exception.